FILED

May 23, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

DAVID L. WASHINGTON, )

)

Plaintiff/Appellant, ) Davidson Chancery

) No. 94-2550-III

VS. )

) Appeal No.

DEPARTMENT OF CORRECTION, ) 01A01-9506-CH-00276

ET AL., )

)

Defendants/Appellees. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

For the Plaintiff/Appellant: For the Defendants/Appellees:

David L. Washington Charles W. Burson

Pro Se Attorney General and Reporter

Merrilyn Feirman

Assistant Attorney General

VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
1Tenn. Ct. App. R. 10(b) provides as follows:

The Court, with the concurrence of all judges participating in the case,

may affirm, reverse or modify the actions of the trial court by memorandum

opinion when a formal opinion would have no precedential value. When a case

is decided by memorandum opinion it shall be designated "MEMORANDUM

OPINION," shall not be published, and shall not be cited or relied on for any

reason in a subsequent unrelated case.

2Three months before initiating this suit, Mr. Washington filed another suit in the

Criminal Court for Washington County seeking relief from his sentence. The criminal court

dismissed the petition, and the Court of Criminal Appeals affirmed. Washington v. State, App.

No. 03C01-9411-CR-00407, 1995 WL 227900 (Tenn. Crim. App. April 18, 1995), perm. app.

denied (Tenn., July 3, 1995).

-2-

MEMORANDUM OPINION

This appeal involves a prisoner’s challenge to the Department of

Correction’s calculation of his sentence reduction credits. After exhausting his

departmental remedies, the prisoner filed a declaratory judgment action in the

Chancery Court for Davidson County. The trial court granted the Department’s

motion for summary judgment and dismissed the complaint. We have determined

that the record does not support granting a summary judgment and, accordingly,

vacate the judgment pursuant to Tenn. Ct. App. R. 10(b).1 

I.

David Washington is serving seventy to seventy-five years for rape,

burglary, grand larceny, and petit larceny. He has been incarcerated since 1976

and is presently housed at the Northeast Correctional Center in Mountain City.

After twenty years behind bars, Mr. Washington questioned the calculation of his

parole eligibility date and asserted that the Department of Correction had

misfigured his sentence reduction credits under Tenn. Code Ann. § 41-21-236

(1990). After the Department’s response to his complaint proved unsatisfactory,

Mr. Washington filed suit in the Chancery Court for Davidson County requesting

the court to correct his sentence expiration date and to award him the sentence

reduction credits to which he was entitled.2

Rather than answeringMr.Washington’s petition for declaratory judgment,

the Department responded immediately by filing for summary judgment. Instead

of specifying the grounds for the summary judgment, the motion merely asked for

a summary judgment and recited that grounds for the motion were set out in an
-3-

accompanying memorandum of law. The motion referred to no supporting

materials of any type.

Mr. Washington moved to strike the Department’s motion because “the

Respondents have not reflected any exhibits or proof to justify that said

calculation of his [sic] sentence is correct.” He also complained that the State "did

[not] . . . supply petitioner the affidavit of Faye Claud as reflected on their

memorandum in support of motion to the Court as [i]ndicated by certificate of

service on the petitioner." He supported these assertions with an affidavit to the

same effect. In its order granting the Department’s motion, the trial court recited

that “[f]rom the material submitted by the defendant in support of its motion for

summary judgment, it appears to the Court that the plaintiff’s sentences and parole

eligibility are correctly calculated.” Mr. Washington has appealed to this court.

II.

Tenn. R. Civ. P. 56.02 expressly provides that a defending party in a

declaratory judgment action may, at any time, move for summary judgment with

or without supporting affidavits. When a defending party moves for a summary

judgment, it bears the initial burden of producing sufficient evidence to support

its motion and to satisfy the trial court that the material evidence is undisputed,

Byrd v. Hall, 847 S.W.2d 208, 213 (Tenn. 1993); Burgess v. Harley, 934 S.W.2d

58, 62 (Tenn. Ct. App. 1996), and that it is entitled to a judgment as a matter of

law. Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993).

The Department has not shouldered its burden of proof in this case. The

trial court’s judgment refers to “material” submitted by the Department in support

of its motion for summary judgment; however, the appellate record does not

contain this material. On June 24, 1996, this court ordered the clerk and master

to prepare and transmit a supplemental record containing the material supporting

the Department’s motion. The clerk and master subsequently filed a supplemental

record containing a copy of the Department’s memorandum of law filed with its

summary judgment motion. This memorandum refers to an affidavit by Faye

Claud, but the supplemental record did not contain Ms. Claud’s affidavit. Again,

on April 30, 1997, this court ordered the clerk and master to certify and transmit

a second supplemental record specifically to consist of the affidavit of Faye
Claud, the Department of Correction manager of sentence information services.

On May 20, 1996, the clerk and master certified to this court that her office had

no such affidavit. 

Mr. Washington’s verified petition puts at issue the material facts

concerning the correct calculation of his sentence. The statements in the

Department’s motion and memorandum of law in support of summary judgment

do not constitute evidence of the facts in Mr. Washington’s case, State v. Dykes,

803 S.W.2d 250, 255 (Tenn. Crim. App. 1990); Price v. Mercury Supply Co., 682

S.W.2d 924, 929 n. 5 (Tenn. Ct. App. 1984), and those lawyer-written statements

alone do not remove all genuine issues of fact in this case. The record in its

present state requires this court to find that the Department has failed to carry its

burden of providing competent evidence upon which the trial court could properly

conclude that there are no genuine issues concerning the material facts of this

dispute. Accordingly, we have no choice other than to vacate the order dismissing

the complaint. 

III.

We vacate the summary judgment and remand this case to the chancery

court for further proceedings consistent with this opinion. We also tax the costs

to the Department of Correction.

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________

HENRY F. TODD, P.J., M.S. 

________________________________

SAMUEL L. LEWIS, JUDGE